A Law Firm That Won an Appeal in the US Supreme Court with a Unanimous Decision

On August 25, 1993, C&L Enterprises of Lindsay, Oklahoma, a family-owned construction company, contracted with the Citizen Potawatomi Nation to construct the roof on the First National Bank and Trust building in Shawnee, Oklahoma, which is owned by the Tribe. When the Tribe later changed its mind regarding the construction of the roof and hired another contractor in breach of its contract, C&L hired Garvin Agee Carlton, P.C. to force the Tribe to comply with its contract.

The Firm first filed an arbitration claim for C&L as provided for in the terms of the written contract. The tribe refused to participate in the arbitration, arguing that it had sovereign immunity from suit or forced arbitration in spite of the specific provisions of the contract. The Firm prevailed obtaining an arbitration award in C&L's favor. When the Tribe refused to pay the arbitration award, the Firm filed suit in state court and obtained a judgment for the amount of the arbitration award plus additional attorney's fees and court costs incurred.

The Tribe appealed to the Oklahoma Supreme Court and, at the same time, attempted several actions to try to prevent C&L from collecting on the judgment including filing several suits in federal court, all of which the Firm succeeded in getting dismissed in spite of the Tribe's appeal to the Tenth Circuit Court of Appeals in Denver, Colorado. Garvin Agee Carlton, P.C. attorneys continued efforts to collect the judgment until, after serving a garnishment on the Tribe's bank and obtaining an order directing the Tribe's Business Committee Chairman to appear in court and testify as to the Tribe's assets, the Tribe finally posted an appeal bond with the court which, although it stayed collection efforts while appeals are pending, will automatically be paid to C&L once the appeals are concluded.

The Oklahoma Supreme Court initially ruled in favor of C&L, saying the Tribe did not have sovereign immunity from the suit because the contract was entered into outside of the Tribe's reservation. The Tribe appealed that ruling to the U.S. Supreme Court. When the Supreme Court ruled in another case that Indian tribes do generally have immunity from suit, even where they contract off of tribal reservation lands, it sent the C&L case back to the Oklahoma Supreme Court for reconsideration in light of the Firm's other argument that even if the Tribe otherwise had sovereign immunity, the Tribe waived it by agreeing to the arbitration terms of the contract.

The case was then heard again by the Oklahoma Court of Appeals and the Oklahoma Supreme Court. This time, the Oklahoma appellate courts ruled against C&L. Firmly believing that the Oklahoma Supreme Court ruling was incorrect, Garvin Agee Carlton, P.C. attorneys appealed to the U.S. Supreme Court. After reviewing the Firm's Petition for Certiorari, the U.S. Supreme Court agreed to hear the case to decide what would be the standard to apply in determining whether an Indian Tribe has waived its sovereign immunity from suit. Specifically, the Supreme Court agreed to determine whether the arbitration agreement contained in the construction contract with the was sufficient to constitute a waiver of sovereign immunity from suit to enforce the arbitration award.

In the months leading up to the March 19, 2001, argument before the U.S. Supreme Court, the Firm's attorneys worked as a team researching case authorities and exploring any possible arguments which could be raised by the Court. John Mashburn, a partner with the Firm, presented moot (practice) arguments first before a panel of attorneys & law professors at the University of Texas and again with Firm partners, James Carlton and Brett Agee, before a panel of attorney members of the American Association of Attorneys General in Washington, D.C.

On March 19, 2001, John Mashburn argued the appeal before the United States Supreme Court. Despite intense questioning by the Justices, the central argument that the arbitration clause of the contract was a clear waiver of any sovereign immunity which the Tribe might otherwise enjoy, appeared to be well taken by the Court. Then, early into the argument of the Tribe's counsel, the Court's frustration with the Tribe's position became obvious. Virtually every Justice of the Court assailed the Tribe's position: that the arbitration agreement and consent to suit "in any court having jurisdiction" was meaningless because, the Tribe argued, no court had jurisdiction to enforce the arbitration award. A portion of the official transcript of the argument paints a vivid picture of the questioning of the Tribe's attorney about which court, if any, had jurisdiction to resolve the dispute between the Tribe and C&L:
QUESTION: [Justice Breyer] Is it a court on the moon? I mean, what is--there are only to my knowledge Tribal Courts, federal courts, state courts, what else is there?

MR. MINNIS: There are any courts that have jurisdiction. It begs the questions which court has--

QUESTION: [Justice O'Connor] But, you say no court has jurisdiction because this isn't a waiver of tribal immunity.

MR. MINNIS: That's correct.

QUESTION: [Justice O'Connor] I thought your position was no court had jurisdiction.

MR. MINNIS: That's correct.

QUESTION: [Justice O'Connor] You're on the moon.

MR. MINNIS: That's correct.

QUESTION: [Justice Breyer] So, the tribe in effect has asked the contractor to use a term which in fact is totally meaningless, utterly misleading, and apparently an act of intentional bad faith. Isn't that the consequence of your position?

MR. MINNIS: No, Your Honor. The--every--

QUESTION: [Justice Breyer] It means any court having jurisdiction. A-ha, there isn't one of those. Too bad. We didn't mention that. That seems to be the argument.

MR. MINNIS: That is the argument, Your Honor...

Read the Official Transcript of the Oral Argument